Of Nigeria’s Democracy and the Rule of C(law)s

Hallmark of Military Regimes: Breach of Fundamental Rights

Should Government make it their institutional policy and culture, to breach the fundamental rights of the people, citizens and non-citizens alike? This was the trademark/hallmark of past authoritarian military regimes, but it seems as if a healthy part of this negative culture has been carried over to our so-called democratic dispensation. Of course, this isn’t particularly surprising, for various reasons, not limited to the lack of accountability in Nigerian governance, and the fact that many military men simply replaced their military uniform with a civilian toga to join politics and continue with their dictatorship tendencies, to the extent that Nigeria has been ruled by two former military dictators for a total of 16 years out of this 25 year Fourth Republic! 

The various fundamental rights subsequently provided for in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) were previously vehemently and vigorously breached by the military – Sections 33(1), 34, 35, 36(1) & (5), 37, 38 (1), 39(1), 40, 41 & 42 – the right to life; dignity of a human person; personal liberty; fair hearing and presumption of innocence until proven guilty; right to freedom of thought; right to freedom of expression and the press; right to peaceful assembly and association; freedom of movement and freedom from discrimination, were all trampled upon with gusto, aplomb and relish during the military days. 

In the old military days, extremely violent breaches of these rights occurred, such as unlawful arrests; assaulting of Journalists and Activists (people like late Chief Gani Fawehinmi, SAN, SAM and Femi Falana, SAN may have lost count of how many times they were arrested and detained without trial); inhumane treatment and torture of detainees; drowning voices of dissent; seizing of passports to prevent so-called enemies of the State from travelling abroad to go and complain internationally about the Nigerian governments – I recall when my Mother, Dame Priscilla Kuye was stopped at the airport and prevented from travelling to the Beijing World Conference on Women in 1995, during General Abacha’s regime.

There was also murder, be it outright violent attacks like the parcel bomb that was sent to kill Newswatch Publisher, late Dele Giwa in October 1986 during the General Ibrahim Babangida regime (his murder remains unsolved to date), to executions contrived by the State, such as the execution of Ken Saro Wiwa and his eight Co-Defendants (the Ogoni 9), hanged in 1995 by the General Sani Abacha military dictatorship after facing a Special Military Tribunal, for allegedly plotting the killing of some Ogoni Chiefs. Saro Wiwa had been a Niger Delta Activist, fighting against the degradation of Ogoniland as a result of oil exploration and production activities, and was seeking compensation for Ogoniland in that regard. They were given nothing close to a fair trial.

During the regime of General Olusegun Obasanjo, in February 1977, the ‘Kalakuta Republic’ home of late Musician and Government critic, Fela Anikulapo-Kuti was invaded by soldiers. Fela’s Mother, Human Rights Activist, Olufunmilayo Ransome-Kuti was assaulted by the soldiers and violently thrown down from the balcony upstairs. She never fully recovered from the injuries she sustained during that unfortunate encounter, and she died about fourteen months after the incident (I recommend Bolanle Austen-Peters Production’s movie, ‘Olufunmilayo Ransome-Kuti’ which features a vivid account of the event that took place at Kalakuta Republic on February 18, 1977).

Ironically, General Sani Abacha was assassinated on June 8, 1998, while Chief M.K.O. Abiola, GCFR, died mysteriously of an alleged ‘cardiac arrest’ a month later on July 7, 1998, while he was in the custody of the Government, having been detained in solitary confinement for about four years. Chief Abiola was detained without trial by General Abacha, for trying to claim the mandate of the Presidential election which he won on June 12, 1993. Military Government Executioner, Sergeant Barnabas Jabila aka Sergeant Rogers confessed to murdering Chief Abiola’s wife, Kudirat Abiola and the failed murder attempt on the Publisher of the Guardian Newspaper, Mr Alex Ibru, on the orders of Major Hamza Al Mustapha, the Chief Security Officer to General Abacha. Due to the fact that there’s no accountability in governance in Nigeria, Major Al Mustapha recently sought to run for the Presidency of Nigeria in the last general election; imagine Joseph Goebbels running for the Presidency of Germany, 20 years after the atrocities they perpetrated during the Nazi era?!

Continuous Fundamental Rights Breaches by the Authorities in a So-Called Democratic Dispensation, Particularly Law Enforcement Agencies

The question is whether there has been a change in this negative culture of the authorities breaching rights, since the inception of the Fourth Republic in 1999. The answer is, not quite! While I’m not saying that the murders I mention below are State-sponsored, because no one (except their killers) appears to know who killed the former Attorney-General of the Federation, Bola Ige, SAN, or PDP Lagos State Gubernatorial Candidate, Funsho Williams, what should we also call what occurred at the Lekki Tollgate during the #EndSARS Protest in October 2021 when soldiers opened fire on unarmed Youths, if not a breach of the rights of those Youths on several levels? For one, innocent people were said to have lost their lives, as a result of that unfortunate incident.

Meanwhile, other types of constitutional breaches by the authorities have continued subtly and not so subtly, democracy or not, and the security agencies like the Police and DSS are two of the biggest culprits in this regard. In fact, the Anti-Torture Act 2017 (ATA) was enacted to stop agencies like the Police from torturing suspects in their custody. 

1) Police

In Kure v COP (2020) LPELR-49378(SC) per Uwani Musa Abba Aji, JSC, the Supreme Court held that “The primary duty of the Police by Section 4 of the Police Act is the prevention of crime, investigation and detection of crime and the prosecution of offenders”. In this particular case, Her Lordship wondered “how a purely civil case could easily metamorphose and trans-substantiate into a purely criminal case”. Good question. But, we see it happen with the Police and EFCC regularly.

The other day, a Foreigner was referred to me by a friend. He reported a case of breach of contract to me – breach on the part of the Nigerian party, who then made use of the Police to not only extort money from him, but to also introduce a criminal element that didn’t exist into the matter, in an attempt to justify their unlawful activity of extortion of money, hanging documents he was forced to sign to regain his freedom over his head, as a form of blackmail! See the case of Diamond Bank v Opara & Ors (2018) LPELR-43907(SC) per Sidi Dauda Bage, JSC on illegal detention by Police and coercion to pay money to be released on bail. The Foreigner was not given any opportunity to contact his Embassy, nor have legal representation. I felt so ashamed of our Police, when he recounted his ordeal to me. And, Nigeria is looking for Foreign Direct Investment (FDI)! Also see the case of EFCC v Diamond Bank Plc & Ors (2018) LPELR-44217(SC).

In Kure v COP (Supra), the Apex Court further held that “The Police is not a debt recovery agency and has no business to dabble into contractual disputes between parties arising from purely civil transactions”. But, in reality, civil matters like Debt Collection, Landlord & Tenant Matters are popular with the Police!  In fact, the Court also held that involving the Police in civil matters is ‘Mala fide’, “using the coercive powers of the State to punish a contracting party”, and those who do so, should be held liable in damages. I concur. 

A few months ago, as I was exiting a court room, some elderly men approached me to please call their Lawyer as he was no longer answering their calls after taking their money! They then told me that their son had been arrested for Wandering, and subsequently, the Police had beefed up the Wandering charge with what they alleged was a trumped up charge of Cultism! For the avoidance of doubt, Wandering is no longer an offence under Nigerian law, so why do the Police continue to arrest people for an offence unknown to law contrary to Section 36(8) of the Constitution? Section 1 of the Minor Offences (Miscellaneous Provisions) Act 2004 (MOA), abolished the offence of Wandering under the Criminal Code and Penal Code. But, do the Police care about the MOA? I don’t think so. In spite of a plethora of authorities, agencies like the Police, EFCC and SSS are still deeply involved in matters that do not fall within their statutory duties. 

2) DSS/SSS

While I will never subscribe to the dissemination of fake news about anybody or organisation, in recent times we have read news reports about Journalists being treated in a similar manner as the military days by law enforcement agencies. Raids have been conducted on Media Houses by the DSS, as a tactic of intimidation to drown the voices of dissension. Nigerians will never forget the unprecedented and shameful DSS raids on Judges and Justices in October 2016 in the dead of night, during the Buhari administration. The National Security Agencies Act 2006 (NSA Act) which was cited to support DSS’s unlawful actions then, couldn’t by the stretch of any vivid imagination have been applied to that situation – see Section 2(3) of the NSA Act on the duties of the SSS. They say DSS may be another name for SSS, or it’s alter-ego, but DSS isn’t mentioned in the NSA Act; I wonder who is then sued, in a matter involving the DSS? Does it have a juristic personality, like the Police and EFCC? 

There is a proper process to follow, when there’s reasonable suspicion that an individual or an organisation has broken the law. Gestapo tactics do not align with,  or augur well in a democratic dispensation. Yet, this is the hallmark of the DSS. 

However, the same security agencies that go around bullying people, have failed to arrest former Governor of Kogi State, Yahaya Bello who was declared wanted for money laundering to the tune of N100 billion, while Senator Orji Kalu is allowed to manipulate the law to escape justice. The equality and equity for all referred to in the Preamble of the Constitution, remains nothing more than an illusion, as our laws appear to be applied differently to different people – another breach of the rights of those who are treated unfairly – see Section 42 of the Constitution. In President of the FRN & Anor v National Assembly & Ors (2022) LPELR-58516(SC) per Ibrahim Mohammed Musa Saulawa, JSC, the Supreme Court reiterated the fact that there must be equality before the law.

3) Government Policies

I watched a programme last week on Channels TV’s Morning Brief discussing 2024 World Food Day themed ‘Good food for all, for Today and Tomorrow’. The most important point I picked from the discussion, is that the right to food is categorised as a fundamental right, based upon the fact that Section 33(1) of the Constitution guarantees our right to life, and food is key to keeping a human being alive. It’s unlikely that a starving individual can stay alive, beyond about two months, give or take some days,  without food. Yet, Nigerians are hungry. Not only is there not enough food for all as a result of people being unable to access their farms due to insecurity, what food stuff is available, is costly. Millions of people are finding it difficult to feed; Government is not fulfilling its constitutional obligation to keep Nigerians happy, ensure that they are treated humanely and harness and maximise the resources that Nigeria is so richly blessed with, in order to give the people a better life – these are rights guaranteed by the Constitution, being breached by the State.

When you also have a Government that sees taxing people to death as not just a low hanging fruit, but good economic policy, it is obvious that such administration is observing the Constitution in the breach and may be bereft of ideas. Is it true that Lagos State wants to introduce a new tax to home owners who are owner-occupiers?! What nonsense is that? When Lagosians are already paying Land Use Charge, which is an occupation and ownership tax? The Land Use Charge is a combination of the tenement rate which is paid by the occupier or tenant in a property, and the ground rent which is the tax paid by the grantee to the government grantor of the lease on the land. Any new owner-occupier tax, no matter how small, will amount to double taxation. 

Is it good Government policy to pauperise Nigerians, by over-taxation? The other day, someone was telling me that a foreign company wanted to invest in West Africa; despite the fact that Nigeria has the largest market for their product, they decided to go to one of the smaller countries, because the atmosphere for FDI is becoming less conducive in Nigeria – it’s more about difficulty, and not ease of doing business, coupled with corruption and inconsistent government policy.

Conclusion 

Section 1(1) of the Constitution provides that it is supreme and binding on all persons and authorities in Nigeria, which includes all Government agencies, be them law enforcement or other. A situation where the Constitution, laws and rights of citizens are flagrantly and regularly breached by them, particularly in a democratic dispensation, is unacceptable. See Saraki v FRN (2016) LPELR-40013(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (now CJN) on the supremacy of the Constitution. In Governor of Lagos State v Ojukwu 1986 1 N.W.L.R. Part 18 Page 647-648 per Chukwudifu Oputa, JSC, the Supreme Court held inter alia that the State is subject to the law, and should respect the rights of individuals under the rule of law. 

If such a judgement was delivered during the military era, today, more than ever, should the contents of its decision not be what obtains in a so-called democratic dispensation? The answer is, Yes. But, for many in Government, obedience to the rule of law and respecting the rights of the people may not be important, but, these are some of the issues that a Foreigner takes into consideration, when determining whether to invest in Nigeria or not. Already, many foreign companies have folded up and left Nigeria. This isn’t to say that some of them weren’t on a mission to plunder Nigeria, and so it may be good riddance to them; but, I’m referring to attracting FDI that will be of benefit to Nigeria.

It is imperative that Government and its agencies, particularly those in law enforcement appreciate the importance of upholding the people’s fundamental rights and the rule of law. It is off-putting to all, citizens and foreigners alike, when the opposite appears to be the case.